People v. Ewen, 2-88-0894

• Decision Date: 23 February 1990
• Docket Number: No. 2-88-0894,2-88-0894
• Parties: , 141 Ill.Dec. 433 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David J. EWEN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 426

551 N.E.2d 426 194 Ill.App.3d 404, 141 Ill.Dec. 433 The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
David J. EWEN, Defendant-Appellant. No. 2-88-0894. Appellate Court of Illinois,
Second District. Feb. 23, 1990.

Page 427

[194 Ill.App.3d 406] [141 Ill.Dec. 434] Harlovic & Perko, Phyllis J. Perko, Harlovic & Perko, West Dundee, boback,[141 Ill.Dec. 435] Bianchi & Simko, Ltd., James M. Boback, Boback

Page 428

& Bianchi, Ltd., Crystal Lake, for David J. Ewen.

Thomas F. Baker, McHenry County State's Atty., Woodstock, William L. Browers, Deputy Director, State's Attys. Appellate Prosecutor, Elgin, for People.

Presiding Justice UNVERZAGT delivered the opinion of the court:

Defendant, David J. Ewen, was indicted in the circuit court of McHenry County, for the offense of child pornography, in violation of section 11-20.1(a)(2) of the Criminal Code of 1961 (Ill.Rev.Stat.1987, ch. 38, par. 11-20.1(a)(2)). Defendant was convicted of the offense following a bench trial. He was sentenced to a term of probation for 12 months, a fine of $1,000, and 50 hours of public service work.

On appeal, defendant presents three issues: (1) is the child pornography provision unconstitutional; (2) should defendant's motions to suppress evidence and statements have been granted; and (3) was the proof of mental element sufficient beyond a reasonable doubt?

The statute under which defendant was convicted provides in part:

"(a) A person commits the offense of child pornography who:

* * * * * *

(2) with the knowledge of the nature or content thereof, * * * possesses any * * * photograph or other similar visual reproduction of any child whom the person knows or reasonably should know to be under the age of 18 engaged in any activity described in subparagraphs (i) through (vii) of paragraph (1) of this subsection." (Ill.Rev.Stat.1987, ch. 38, par. 11-20.1(a)(2).)

Subparagraph (vii) provides as follows:

"(vii) depicted or portrayed in any pose, posture or setting involving a lewd exhibition of the genitals of the child or other [194 Ill.App.3d 407] person * * *." Ill.Rev.Stat.1987, ch. 38, par. 11-20.1(a)(1)(vii).

The indictment charged that

"the said defendant, with knowledge of the nature and content thereof, did possess photographs of children whom he knew or reasonably should have known to be under the age of 18, who were depicted and portrayed in poses and postures involving lewd exhibitions of genitals of said children in violation of Illinois Revised Statutes 1987, chapter 38, paragraph 11-20.1(a)(2)."

In 1985, the statute we have set forth above made possession of child pornography an offense under the Criminal Code.

The defendant, a 43-year-old unmarried male, resides with his elderly mother in the family home where he has resided all of his life.

About 10 years before his arrest in this case, the defendant placed an ad in a Los Angeles, California, magazine giving his name and address, and the following:

"Wanted--Photos/slides of nude little girls, 6 to 15--bold, revealing poses. Also nude pre-teen sisters, brothers/sisters. Strong action or training poses. Samples please."

Thereafter, the Illinois Department of State Police was informed by the Los Angeles, California police department that the defendant had placed the advertisement described above. Sergeant James Turner of the Illinois State Police and a member of the Division of Criminal Investigation, Child Exploitation Unit, testified that he wrote an undercover letter to defendant on September 9, 1986, which asked for a meeting with the defendant. The letter, signed with a fictitious name, implied that the writer and Mr. Ewen shared a common interest in collecting and taking photographs which required some discretion. The defendant did not respond to this letter.

On November 24, 1986, Sergeant Turner again wrote a letter to defendant using the fictitious name. This letter included an order form for photographs of boys and girls in sex action. The letter suggested that the writer and Mr. Ewen meet. Mr. Ewen took this letter to the Woodstock police department, asking that they take appropriate action. The Woodstock police department notified Sergeant Turner of their receipt of the letter from Mr. Ewen.

Page 429

[141 Ill.Dec. 436] Sergeant Turner and Detective Schultz met at the Woodstock police department, and they decided to go to Mr. Ewen's home to discuss the complaint he had about the letter that was sent to him in November.

Sergeant Turner, Detective Schultz, and special agent Melinda [194 Ill.App.3d 408] Pharis, also of the Illinois State Police, went to defendant's home. Defendant's mother met them at the door and ushered them into the foyer, where they met defendant who came up and asked them to come into the living room.

Sergeant Turner told Mr. Ewen that his name was on a police intelligence file of known child pornography subscribers. Turner showed Ewen a copy of the ad he had placed many years before in...